Metropolitan News-Enterprise


Wednesday, September 14, 2005


Page 1


C.A. Overturns Reinstatement of Deputy Who Covered Up Beating


By KENNETH OFGANG, Staff Writer/Appellate Courts


The San Diego County Civil Service Commission abused its discretion in ordering reinstatement of a probationary deputy sheriff fired for covering up a fellow deputy’s beating of a jail inmate, the Fourth District Court of Appeal has ruled.

Overruling the commission and a San Diego Superior Court judge, Div. One said Sheriff Bill Kolender was within his lawful authority when he fired Timothy Berry after Berry recanted an earlier statement and admitted lying, at Deputy Sheriff Alfonso Padilla’s request, about Padilla’s confrontation with the inmate.

Berry’s wrongdoing implicated important values essential to the orderly operation of the office,” Justice Terry O’Rourke wrote Aug. 22. His opinion was certified Monday for publication.

Belligerent Inmate

Berry, who had recently joined the Sheriff’s Department at age 40 after retiring from the Navy, was on duty at the George Bailey Detention Center when the inmate became belligerent. He and Padilla took the inmate out of the housing unit and towards the medical holding area, where Padilla told Berry he no longer needed his assistance.

After Berry left, Padilla allegedly took the inmate into the recreation area and repeatedly bumped his head against a wall. The inmate was treated and filed a grievance with the department.

At his civil service hearing, Berry admitted that he lied to investigators by telling them that Padilla simply took the inmate to the medical holding area. In fact, Berry said, Padilla realized he went “overboard with the inmate” and asked Berry to lie.

A week after the interview, Berry acknowledged, he was confronted with discrepancies in his account and admitted to the investigator that he had not told the truth. He was fired for lack of truthfulness.

Charge Sustained

A hearing officer sustained the charge, but said that termination was excessive under the circumstances. Noting that Berry had not been previously disciplined, was concerned about losing his status with his co-workers, had been introduced by his senior officers into a culture that prized loyalty, and had eventually admitted the truth, the officer recommended a 90-day suspension, and the commission agreed.

San Diego Superior Court Judge Richard Strauss denied the sheriff’s petition for writ of mandate, but the Court of Appeal disagreed, saying the reduced penalty was inconsistent with the public safety and welfare.

Berry, O’Rourke wrote,  “lied regarding a grave matter, and thereby forfeited the trust of his office and the public.”

The justice continued:

Berry apparently did not believe he had a professional duty to correct his first lie on his own, and he elected not to do so.  Instead, Berry let one week go by, and only told the truth after the office discovered his lie and pressed him for the truth; otherwise, he might never have done so..... No requirement exists that San Diego Sheriff’s Office retain officers who lie and protect deputies who harm inmates; rather, the Sheriff was entitled to discharge Berry in the first instance, especially in light of the Commission’s findings regarding the existence of the ‘code of silence,’ the physical abuse of inmates, and the ‘rogue team’ within the office.”

O’Rourke rejected the commission’s conclusion that the sheriff was obligated to retain Berry because he “ultimately” told the truth. Such reasoning, “logically extended, encourages sheriff’s deputies to play cat-and-mouse games with investigators and only tell the truth when they determine the moment is opportune to do so, or if they are cornered to do so because their lie has been found out,” the jurist wrote.

The case is Kolender v. San Diego County Civil Service Commission (Berry), 05 S.O.S. 4424.


Copyright 2005, Metropolitan News Company